State v. Twiggs

Supreme Court of New Jersey

June 19, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,v.GARY TWIGGS, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant-Cross-Respondent,v.JAMES E. JONES and LIKISHA JONES, Defendants-Respondents-Cross-Appellants, and GODFREY J. GIBSON, Defendant.

Daniel
V. Gautieri, Assistant Deputy Public Defender, argued the
cause for respondent James E. Jones in State of New Jersey v.
James E. Jones and Likisha Jones (A-63/64/65-16) (Joseph E.
Krakora, Public Defender, attorney; Daniel V. Gautieri, of
counsel and on the briefs).

Christopher T. Campbell argued the cause for respondent
Likisha Jones in State of New Jersey v. James E. Jones and
Likisha Jones A-63/64/65-16) (Law Offices of Christopher T.
Campbell, attorneys; Christopher T. Campbell, of counsel and
on the briefs).

TIMPONE,
J., writing for the Court.

The New
Jersey Code of Criminal Justice (the Code) contains a tolling
provision that delays the start of the clock on the statute
of limitations "when the prosecution is supported by
physical evidence that identifies the actor by means of DNA
testing . . . until the State is in possession of both the
physical evidence and the DNA . . . evidence necessary to
establish the identification of the actor by means of
comparison to the physical evidence." N.J.S.A.
2C:1-6(c). These consolidated appeals hinge on whether the
provision applies when a DNA identification does not directly
identify the defendant but rather begins an investigative
chain that leads to the defendant. A separate issue in
State v. Jones is whether the indictment on the
conspiracy count survives under a "continuing course of
conduct" analysis.

State
v. Twiggs: On June 16, 2009, a detective responded to a
robbery call and met with S.T. (the victim) and defendant
Gary Twiggs, who stated they had been robbed by a white male
wearing a mask, later identified as Dillon Tracy. A police
officer took the mask for DNA analysis. In July 2014, police
collected DNA from Tracy. His DNA matched the sample found on
the mask. Tracy later confessed, implicating Twiggs. Based on
Tracy's testimony, police arrested Twiggs for conspiracy
and the robbery, and a grand jury returned an indictment.
Twiggs moved to dismiss the indictment, arguing that the
claim was barred by the general criminal statute of
limitations, N.J.S.A. 2C:1-6(b)(1). The State responded that
the DNA exception within N.J.S.A. 2C:1-6(c) tolled the
statute of limitations. The trial court found the DNA-tolling
provision inapplicable and dismissed the indictment. A
divided panel of the Appellate Division affirmed. 445
N.J.Super. 23, 36 (App.Div. 2016). The State filed a notice
of appeal as of right pursuant to Rule 2:2-1(a)(2).

State
v. Jones: On August 15, 2002, ten-year-old Iyonna Jones
found a note from her mother, Elisha Jones -- intended for
Iyonna's aunt, Likisha Jones -- explaining that
Iyonna's nine-year-old sister, Jon-Niece Jones, had
stopped breathing and that Elisha went to "tak[e] care
of it." Likisha called her brother, James Jones, telling
him that there was a family emergency. James and Iyonna's
uncle, Godfrey Gibson, traveled to Elisha's home. Upon
their arrival, Elisha packed a plastic bin and garbage bag in
the rear of Gibson's car. James, Gibson, and Elisha drove
to a wooded area in Upper Freehold, New Jersey. Elisha took
the bin into the woods. A few days later at a family meeting,
everyone present made a compact to keep the incident secret
and to answer any inquiries as to Jon-Niece's whereabouts
with "she's with her father." Nearly four
months later, Elisha died. Years later, in March 2005, a
hunter found a child's skeletal remains. In July 2012,
Iyonna provided information relating to the disappearance of
Jon-Niece. Law enforcement compared Iyonna's DNA and the
DNA of Jon-Niece's father, Jamal Kerse, to the DNA
generated from the skeletal remains. In January 2013, a grand
jury returned an indictment, charging James, Likisha, and
Gibson with third-degree conspiracy, as well as substantive
tampering, obstruction, and hindering charges. James and
Likisha moved to dismiss the indictment, arguing expiration
of the applicable statute of limitations. The trial court
denied the motion. The Appellate Division reversed the denial
of defendants' motion to dismiss the tampering,
obstruction, and hindering charges; affirmed the denial of
the motion to dismiss the conspiracy charge; and remanded for
resentencing on the conspiracy charge. 445 N.J.Super. 555,
560 (App.Div. 2016). The Court granted the State's
petition and defendants' cross-petitions for
certification. 230 N.J. 361 (2017); 230 N.J. 374 (2017); 230
N.J. 375 (2017).

HELD:
The DNA-tolling exception applies only when the State obtains
DNA evidence that directly matches the defendant to physical
evidence of a crime. In Jones, the State presented
sufficient evidence of a continuing course of conduct to
survive the motion to dismiss.

1. If
the State does not file charges against an individual within
the relevant statutory timeframe, the statute of limitations
serves as an absolute bar to the prosecution of the offense.
The DNA-tolling exception tolls the statute of limitations if
the State's prosecution of an individual, "the
actor, " is "supported by" DNA evidence that
matches, or "identifies, " the actor to physical
evidence within its possession. N.J.S.A. 2C:1-6(c). Because
of its unique nature, DNA testing has become a widespread and
standard practice in identifying criminal perpetrators that
courts have accepted as scientifically reliable and
admissible in criminal trials against defendants to whom the
DNA matched. N.J.S.A. 2C:1-6(c) permits tolling when
identification is achieved directly by DNA evidence rather
than DNA evidence in addition to other means. It is apparent
that the Legislature intended the provision to apply to the
sole actor whom the DNA distinctly identifies. (pp. 22-25)

2.
Nothing in the legislative history of the tolling statute
calls into question the plain-language reading identified
above. Under the State's interpretation, the tolling
provision would apply even when the primary evidence used to
support its prosecution of a defendant is not the DNA
evidence but rather a statement by a third party. Such
evidence is the very kind of stale evidence the criminal
statutes of limitations operate to guard against. The statute
of limitations is not intended to assist the State in its
investigations; it is intended to protect a defendant's
ability to sustain his or her defense. Unlike other forms of
evidence, DNA evidence can never become stale. For the
DNA-tolling provision to apply, the State must have DNA
evidence that establishes a direct link between physical
evidence already within its possession and the defendant it
seeks to prosecute. (pp. 26-31)

3. The
DNA evidence obtained from the physical evidence in
Jones -- the remains --established no link beyond a
familial connection to Iyonna and Kerse. That evidence
certainly did not directly implicate defendants as
perpetrators of the substantive crimes charged. The
implication came only through third-party testimony, which
N.J.S.A. 2C:1-6(c) does not operate to preserve. Without the
exception, the statute of limitations expired. The judgment
of the Appellate Division reversing the trial court's
denial of defendants' motion to dismiss the indictment on
the substantive charges is affirmed. (pp. 31-32)

4. In
Twiggs, a grand jury indicted Twiggs based primarily
on Tracy's confession and his subsequent implication of
Twiggs as a co-conspirator in the armed robbery. There exists
no direct link between the DNA extracted from the physical
evidence and Twiggs. Unless DNA evidence establishes a direct
identification to the defendant charged, the mere existence
of DNA evidence in a case cannot work to toll general
statutes of limitations. The State argues that the reading of
the term "defendant" to include principals and
accomplices for purposes of the No Early Release Act (NERA)
in State v. Rumblin, 166 N.J. 550 (2001), should
apply to the DNA-tolling context. NERA uses the term
"actor" in a wholly distinct framework to achieve
underlying policy goals separate from those of the
DNA-tolling provision. NERA is not influenced by
stale-evidence concerns because it is triggered only after a
defendant's trial or guilty plea. In contrast, the
DNA-tolling provision creates an exception at the front end
of the judicial process by permitting criminal prosecutions
outside of the generally prescribed statute of limitations.
The discussion of "actor" in Rumblin to
include principals and accomplices under NERA is simply
inapplicable to the DNA-tolling provision. In
Twiggs, the DNA-tolling exception does not apply.
The judgment of the Appellate Division affirming the trial
court's dismissal of the indictment against Twiggs is
affirmed. (pp. 33-36)

5. As
to the motions to dismiss the conspiracy count of the
indictment in Jones, "[c]onspiracy is a
continuing course of conduct" that terminates, for
statute of limitations purposes, when (1) "the crime or
crimes which are its object are committed, " or (2)
"the agreement that they be committed is abandoned by
the defendant and by those with whom he conspired."
N.J.S.A. 2C:5-2(f)(1). In Grunewald v. United
States, the Supreme Court stressed a "vital
distinction" "between acts of concealment done in
furtherance of the main criminal objectives of the
conspiracy, " which extend the conspiracy and toll the
statute of limitations, and "acts of concealment done
after these central objectives have been attained, for the
purpose only of covering up after the crime." 353 U.S.
391, 405 (1957). Here, the State presented sufficient
evidence to survive defendants' motions to dismiss. The
co-conspirators exhibited a continuing course of conduct
beginning before and extending beyond Elisha's death. The
potential exists that those actions were not merely intended
to protect Elisha, but also to insulate from discovery the
co-conspirators' roles. Defendants are entitled to
challenge the evidence advanced by the State. And, if this
case proceeds to trial, defendants would be entitled to a
jury charge explaining Grunewald's application.
The judgment of the Appellate Division affirming the denial
of defendants' motion to dismiss the indictment on the
conspiracy charge in Jones is affirmed. (pp. 36-40)

The New
Jersey Code of Criminal Justice (the Code) contains a tolling
provision that delays the start of the clock on the statute
of limitations "when the prosecution is supported by
physical evidence that identifies the actor by means of DNA
testing . . . until the State is in possession of both the
physical evidence and the DNA . . . evidence necessary to
establish the identification of the actor by means of
comparison to the physical evidence." N.J.S.A.
2C:1-6(c). These consolidated appeals hinge on the meaning of
the term "actor" within that provision and require
us to determine whether the provision applies when a DNA
identification does not directly identify the defendant but
rather begins an investigative chain that leads to the
defendant. Because of the common issues in this opinion, we
are consolidating these appeals.

Based
on the plain language of N.J.S.A. 2C:1-6(c) and the policy
rationale underlying the criminal statute of limitations, we
conclude that the DNA-tolling exception applies only when the
State obtains DNA evidence that directly matches the
defendant to physical evidence of a crime. Because the DNA
identifications at issue in these cases did not directly link
defendants to the relevant offenses, we affirm the Appellate
Division's affirmance of the trial court's dismissal
of the indictments against defendant Gary Twiggs in its
entirety and against defendants James and Likisha Jones in
relevant part.

A
separate issue in State v. Jones is whether the
indictment on the conspiracy count survives under a
"continuing course of conduct" analysis that would
toll the applicable statute of limitations under N.J.S.A.
2C:1-6(c). We agree that the State presented sufficient
evidence of a continuing course of conduct to survive the
motion to dismiss the indictment, so we also affirm the
Appellate Division on that count.

I.

A. We
derive the facts in State v. Twiggs from pretrial
motion practice.

On June
16, 2009, a detective from the Wildwood Crest Police
Department responded to a robbery call. At the scene, the
detective met with S.T. (the victim) and defendant Gary
Twiggs, who stated they had been robbed of their money and
cell phones by a white male wearing a black hoodie, jeans,
and a black mask, later identified as Dillon Tracy. S.T. told
the detective that after Twiggs pulled up in his vehicle,
Tracy approached S.T. from behind, placed a gun in his side,
and ordered him into the passenger seat of Twiggs's
vehicle. Tracy then demanded their cell phones and money and
escaped into a black SUV after both Twiggs and S.T. complied.
Police later found a black mask where S.T. said the black SUV
had been parked. A police officer took the mask for DNA
analysis and later entered the extracted DNA into the
Combined DNA Information System (CODIS).

Twiggs
and S.T. submitted to multiple interviews with police. During
one interview, S.T. admitted that he met Twiggs on the night
of the robbery to sell Twiggs Percocet tablets. S.T. said he
believed Twiggs and Tracy were friends and had arranged the
robbery. In a later interview, Twiggs claimed he was a victim
of the robbery.

In July
2014, police collected DNA from Tracy after he entered a
guilty plea in drug court. His DNA matched the sample found
on the mask. Tracy later confessed, implicating Twiggs in the
2009 robbery. In September 2014, based on Tracy's
testimony, police arrested Twiggs for conspiracy and the
robbery.

In
December 2014, a Cape May Grand Jury returned an indictment,
charging Twiggs and Tracy with conspiracy to commit robbery,
N.J.S.A. 2C:5-2(a), and robbery, N.J.S.A. 2C:15-1(a). Twiggs
moved to dismiss the indictment, arguing that the claim was
barred by the general criminal statute of limitations,
N.J.S.A. 2C:1-6(b)(1). The State responded that the DNA
exception within N.J.S.A. 2C:1-6(c) tolled the statute of
limitations.

The
trial court found the DNA-tolling provision inapplicable
because the DNA evidence recovered in connection with the
offense did not identify Twiggs, but rather Tracy, who in
turn implicated Twiggs as an alleged co-conspirator. The
court consequently dismissed the indictment, and the State
appealed.

A
divided panel of the Appellate Division affirmed. State
v. Twiggs,445 N.J.Super. 23, 36 (App.Div. 2016). The
majority held that "the actor" in the DNA-tolling
provision "refers to the individual whose DNA is
analyzed. It does not apply to a third party identified by
that individual." Id. at 25-26. The majority
determined that the plain language of the statute "only
applies to persons whose DNA directly identifies them as
criminal actors, and does not apply to those who are later
named by those same criminal actors." Id. at
30. Because the physical evidence recovered and the DNA
evidence later obtained did not directly, by itself,
implicate Twiggs, the panel found the DNA-tolling provision
inapplicable for a prosecution against him. Id. at
31 ("[T]he only evidence that the State derived from the
DNA evidence was Tracy's identity, and, subsequently, his
confession that he and defendant conspired to commit
robbery.").

The
majority considered the DNA-tolling exception's
legislative history and rejected the State's argument
that our decision in State v. Rumblin,166 N.J. 550
(2001), supports a broader definition of the term
"actor." Id. at 33-34. The Rumblin Court
concluded that the term "actor" was synonymous with
"principal" and "accomplice" for purposes
of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 166
N.J. at 555-56. The majority in Twiggs distinguished N.J.S.A.
2C:1-6(c)'s use of the term "actor" as
different "both syntactically and lexicologically"
from NERA's use of the word. 445 N.J.Super. at 35.
Focusing, therefore, on the text of the tolling provision,
the panel concluded that its "syntactical use of the
word 'actor' . . . is more specific than the use of
the term in NERA and Rumblin." Id. at 35-36.

According
to the dissent, the "majority opinion's reasoning
[cannot square] with the Supreme Court's interpretation
of the term 'the actor' in State v.
Rumblin." Id. at 37 (Leone, J., dissenting). Judge
Leone's primary concern was to avoid an interpretation
that "would enable the leaders of conspiracies to evade
prosecution under N.J.S.A. 2C:1-6(c) by having the crime
committed by minions, who alone could be prosecuted when the
minion's DNA is matched." Id. at 46.

On May
4, 2016, the State filed a notice of appeal as of right
pursuant to Rule 2:2-1(a)(2).

B.

We
glean the following facts from the grand jury proceedings in
State v. Jones.

On
August 14, 2002, ten-year-old Iyonna Jones left summer school
and went to her aunt Likisha Jones's Manhattan apartment.
After she arrived, Iyonna fed her nine-year-old sister,
Jon-Niece Jones. Jon-Niece[1] became ill after eating and fell over.
When Iyonna picked her up, Jon-Niece made Iyonna promise she
would not let her die. Jon-Niece then closed her eyes, and
Iyonna carried her to bed.

In the
early morning hours of the next day, Iyonna's and
Jon-Niece's mother, Elisha Jones, woke Iyonna and
instructed her to get a large garbage bag. Elisha took the
garbage bag into Jon-Niece's room while Iyonna went back
to sleep. The next morning, Iyonna found a note from Elisha
-- intended for Likisha -- explaining that Jon-Niece had
stopped breathing and that Elisha went to her Staten Island
home to "tak[e] care of it."

In the
meantime, Likisha called her brother, James Jones, telling
him that there was a family emergency and instructing him to
go immediately to the Manhattan apartment.

About
two days later, Iyonna overheard a phone conversation between
Likisha and Elisha, during which Elisha said "she was
scared and didn't know what to do" because Jon-Niece
was "dead at [her] apartment . . . sitting in a bucket
[and] bag, along with cement and gasoline, " and Elisha
was contemplating "burn[ing] the apartment down."
Likisha told ...

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